Uncategorized

Date: November 10, 2015

Summary: This case establishes a new and simplified analysis of the respective burdens on employers and employees in the context of motions for summary judgment in Whistleblowers’ Protection Act cases.

Read the full text of Gerard Brady v. Cumberland County

A biennial nationwide ranking of workers’ compensation premiums was released by the Oregon Department of Consumer and Business Services this month. The 2014 Oregon Workers’ Compensation Premium Rate Ranking Summary shows that, while Maine remains one of the states with the highest premiums in the nation, Maine premiums continue to fall.

The summary’s “index rating” reflects the cost of workers’ compensation premiums per $100 of payroll. Together, the last several ranking summaries reveal that between January 1, 2008 and April 1, 2014, Maine’s premiums have fallen from 5th highest in the nation at $3.04 per $100 payroll, to 13th at $2.15 per $100 payroll – a 29% reduction in premiums.

What factors are driving such a consistent decline in premium costs? According to the 2014 Annual Report on the Status of the State of Maine Workers’ Compensation System, a number of changes may drive the trend. For instance, Maine is one of the states with the largest decrease in benefit costs, and Maine is approaching the national average for indemnity benefits and medical benefits. This decrease in benefits paid may be accounted for in part by several factors including: the adoption and continued revision of a new medical fee schedule in 2011 that aims to minimize medical costs; changes to the Board’s structure; and a significant amendment to the Act in 2013 addressing – among other things – entitlement to partial incapacity benefits.

Whatever the cause for the continued gradual decrease in Maine workers’ compensation premiums, the trend is cause for Maine employers to celebrate. The state has a long way to go before it approaches the national average, but if the Board and legislature continue to address cost drivers, we are hopeful the trend will continue.

Most Mainers know the old adage that Maine has only two seasons: winter and mud season. The joke has a grain of truth, however, and the dangers and costs of ice and snow are no laughing matter. According to the Maine Department of Labor, since 2011, slips and falls on ice and snow have cost Maine workers, employers, and insurers more than $2.3 million annually in lost time and medical expenses. When winter weather hits, Maine businesses need to be prepared, or potentially face slip and fall suits and workers’ compensation claims. Maine law can shield a business exercising best practices from slip and fall suits, but it can also create pitfalls for the unprepared. Read on after the break for some tips to protect your business and your bottom line.

While “slip and fall season” presents many challenges, there are a few things you can do this winter to keep your risk to a minimum. For example:

• If you use a snow removal contractor, make sure you have a well-drafted snow removal contract
• Keep all approaches and entryways to your organization clear of ice and snow
• Where employees handle ice and snow, ensure they do it safely and effectively

For more information on how to protect your business from the risks that go hand in hand with winter weather, contact the attorneys at Tucker Law Group.

With summer around the corner, the labor market is about to be flooded by students looking for internships to gain some hands-on experience in their chosen fields. Internships can be a great experience for both interns and employers; however, employers should look closely at the nature of the work an intern will do before advertising an unpaid internship.

This is because the Fair Labor Standards Act (FLSA) requires employers to compensate anyone they “employ,” and the FLSA defines term “employ” very broadly – namely, to “suffer or permit to work.” Lawsuits by interns alleging their employers violated the Fair Labor Standards Act (FLSA) are on the rise. This trend is due largely to the U.S. Department of Labor’s issuance in 2010 of Fact Sheet #71, which lays out the six factors that an unpaid internship should meet, based on a 1947 U.S. Supreme Court case. At least three recent court cases (Glatt v. Fox, Pfunk v. Cohere, and Grant v. Warner Music Group) have used the DOL’s six factors to find that unpaid interns should have been paid.

No Maine court has ruled on the issue of when an intern must be paid. However, based on U.S. Supreme Court precedent, the DOL’s guidance, and the increase in lawsuits by interns, a business should try to meet as many of the following six factors as possible, if not all of them. As the DOL guidance explains, if all six factors are met, no employment relationship will be found, and a business may safely take on an unpaid intern:

1. Is the internship – even though it involves the actual operations of the employer’s facilities – similar to training which would be given in a vocational school or academic setting?

Unpaid internships should provide something beyond on-the-job training that typical employees receive, and the intern should learn new skills aside from those specific to the organization.

2. Is the internship experience for the benefit of the intern?

The more centered around education and vocational training the internship, the less likely an employment relationship will be found.

3. Does the intern work under close supervision of other employees, without doing their work for them?

The unpaid intern should not perform tasks that paid employees would perform if not for the intern’s presence, and should work under close supervision.

4. Does the employer gain no immediate advantage from the intern’s work, and on occasion are its operations actually impeded?

The intern’s work should not directly benefit the business, and on the contrary, the time required to educate and train the intern may even hinder employees in their work.

5. Is the intern not necessarily entitled to a job at the end of the internship?

This factor suggests that unpaid “tryouts” for a job should be avoided.

6. Do the employer and the intern understand that the intern is not entitled to pay?

Both intern and employer should agree that the internship will be unpaid.

The DOL explains that these factors should be considered based on the whole picture; so it may be possible to have an unpaid internship that doesn’t meet all six factors. However, if an internship doesn’t meet all of the factors, it becomes more likely that a court would find the intern is an employee who should be paid. In the event you are sure your internship meets the requirements, it may be a good idea to draft an internship agreement that spells out why – and a plan for how – each of the six factors will be met, and to ensure employees stick to that plan.

If you have any questions about this subject, feel free to contact the attorneys at Tucker Law Group.

In recent weeks, a 77-year-old law prohibiting Maine businesses from displaying the alcohol content of beers earned Maine national attention. The law, enacted in the wake of Prohibition, prohibits signs or labels referring “in any manner to the alcoholic strength of the malt liquor” or using “such words as ‘extra strength,’ or ‘pre-war strength.’” The Maine Bureau of Alcoholic Beverages & Lottery Operations recently began interpreting this law to prevent the display of alcohol-by-volume (ABV) numbers on signs or menus, and issued warnings to restaurants and bars throughout the state. Thankfully, on Tuesday the Bureau announced a new enforcement policy. But is the problem really solved?

The Bureau has announced it will not enforce the law against bar or restaurant operators who display the ABV of beer on signs or menus in an unembellished manner, as it appears on the label. Anything else that reflects on the beer’s strength (for instance, “It’ll get ya drunk!”) will still be subject to the law.

The policy change is welcome to many, as commentators have argued that ABV labeling is a matter of public safety and consumer rights. For instance, a beer drinker used Bud Light’s 4.2% ABV might be in for a shock if they had just one Sam Adams Triple Bock, weighing in at a whopping 18%. The law may also be unconstitutional: The legislative push to deny consumers ABV information is a remnant of state and federal laws arising in the wake of Prohibition, such as the Federal Alcohol Administration Act (FAAA). The FAAA was struck down by the U.S. Supreme Court in 1995 as an unconstitutional restraint on commercial speech. However, its legacy of patchwork state legislation lives on.

While the Bureau has backpedaled on its decision to enforce the law to prevent display of ABVs, the law remains on the books and open to future interpretation. As long as this potentially unconstitutional law remains unchanged, regulators may prevent businesses from displaying the alcohol content of the beverages their customers consume. Fortunately, one legislator, Representative Luis Luchini (D-Ellsworth), has already submitted a bill to resolve the law’s ambiguity and ensure ABV information remains available to consumers.

In the civil litigation and workers’ compensation fields, medical experts are often called on to give opinions about whether a particular medical condition was caused or contributed to by a specific injurious event or by the conditions of the claimant’s employment. Often these questions are directed at doctors whose daily practice involves primarily diagnosis and treatment, and not determining a medical causal relationship between medical conditions and events. As a result, when faced with these issues, some doctors resort to assessing causation on a purely subjective basis: i.e. the patient’s self report. Fortunately, the American Medical Association’s Guides to the Evaluation of Disease and Injury Causation provide evaluators with a protocol for making scientifically credible findings on causation.

The Protocol provided by the Guides is a six-step process. Failure to complete any of the steps in a manner that supports a causal relationship eliminates credibility for claims of injury-relatedness or work-relatedness. The six steps are:

1. Definitively establish a diagnosis: Is there any objective and credible evidence of a diagnosis that might explain the examinee’s clinical presentation (complaints, symptoms, signs, etc)?
2. Apply relevant findings from epidemiologic science to the individual case: Has the claimed cause (in this individual case) been scientifically identified as a significant risk factor for the diagnosis? What are the most well-established risk factors?
3. Obtain and Assess the Evidence of Exposure: Is there evidence, primarily objective, of exposure to the claimed cause of the clinical presentation and what is the relationship in time between the exposure and presentation?
4. Consider other relevant factors: Are there other risk factors that contribute to the development of this clinical presentation? Are any relevant here?
5. Scrutinize the Validity of the Evidence: Is there conflicting information? Have other examiners provided opinions lacking in scientific credibility?
6. Evaluate the Results from All of the Above Steps, Generate Conclusions

Back In February, we reported on a lawsuit the Equal Employment Opportunity Commission (EEOC) filed against CVS in the Northern District of Illinois. As you may recall, the EEOC alleged CVS’ severance agreement unlawfully restricted employees’ rights to file discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII). Had the federal court agreed, employers could have lost some important protections which severance agreements typically offer, including agreements not to sue.

As promised, we have kept an eye on the situation, and are pleased to report the court recently dismissed the EEOC’s claim, though only on procedural grounds. The court found the EEOC failed to engage in the required informal conciliation process before filing suit. While the court didn’t reach the merits of the case, its opinion does include a footnote which may help employers in severance agreement disputes down the road. Judge John W. Darrah noted CVS’ agreement did not actually prohibit employees from filing a discrimination claim, and that even if it intended this result, the agreement would simply be invalid rather than a violation of Title VII.

This ruling means severance agreements protecting employers from lawsuits are likely safe – for now. There is currently another similar EEOC suit pending in Colorado against a second company, CollegeAmerica. We will let you know when there are any important developments in this case.

In the meantime, it would still be wise to ensure your company’s severance agreement makes clear that departing employees are not prohibited from filing a discrimination claim or cooperating with any agency that enforces state or federal discrimination laws.

This month the Maine Workers’ Compensation Board completed its annual update to the medical fee schedule. The fee schedule governs the amounts employers and insurers must pay for physician, outpatient, and inpatient services. Each year under Title 39-A §209-A the Board adopts the current CMS relative values and Current Procedural Terminology (CPT) codes, and applies the Board’s conversion factor to determine the new fee for each service. In addition, the Board will vote on a new medical fee rule in January 2015 and issue the rule for public comment.

A spreadsheet of updated weights and fees may be found on the Maine Workers’ Compensation Board homepage. For questions on the updated fee schedule, contact the attorneys at Tucker Law Group.

A common issue faced by workers’ compensation insurers and medical providers is the prevalence of chronic opioid use by injured workers with chronic pain. Longterm use of opioids for chronic non-­cancer pain increased dramatically over the past two decades, despite very little evidence that long-term (at least 16 weeks) opioid use for such pain is effective. (1) As many claims handlers are aware, injured workers often remain on opioid pain medicine for months or years – at great expense – with little to no benefit.

Research has shed some light on this phenomenon, suggesting that, in addition to opioid tolerance, chronic opioid use may actually worsen chronic pain by causing a condition known as “opioid induced hyperalgesia.” Patients with this condition can, over time, develop an increasing sensitivity to painful stimuli, even developing a pain response to previously non-painful stimuli. (2). This heightened pain sensitivity can combine with opioid tolerance, causing a patient to take larger and larger doses of opioids without benefit, and even increasing pain. This leads to skyrocketing medical costs and exposure and can undermine a potential settlement by significantly increasing the cost of a Medicare set-aside (MSA).

To make matters worse, evidence is emerging that chronic opioid use may actually increase the risk of developing major depression, another will bar to return-to-work efforts. A 2013 study found that patients who remained on opioids for 180 days or longer were at a 53 percent increased risk of developing a new episode of depression, and those using opioids for 90-180 days were at a 25 percent increased risk compared to those who took opioids for less than 90 days. (3). “These findings suggest that the longer one is exposed to opioid analgesics, the greater is their risk of developing depression,” says Jeffrey Scherrer, Ph.D., lead investigator of the study.

These findings highlight the importance of addressing long-term opioid use as early as possible. If possible, one could attempt a weaning program coordinated with the treating physicians. Alternative pain management could also be attempted. Finally, for those difficult cases, there is the utilization review process.

Cited Sources:
(1) Von Korff, Michael et al., Long-Term Opioid Therapy Reconsidered. Ann Intern Med. Sep 6, 2011; 155(5): 325–328.
(2) Lee, M. et al., A Comprehensive Review of Opioid-Induced Hyperalgesia. Pain Physician. 2011 Mar-Apr;14(2):145-61.
(3) Scherrer, Jeffrey et al., Prescription Opioid Analgesics Increase the Risk of Depression. Journal of General Internal Medicine, Mar. 2014, Vol. 29, Issue 3, pp 491-499.
(4) Wuitchik, M. & Feehan, GG, Opioid withdrawal versus opioid maintenance for persons with chronic non-cancer pain: The experience of the Canmore Pain Clinic. Rehab Review 2006; 2:19-21.